Missos v Victorian WorkCover Authority
[2025] VCC 1441
•16 October 2025
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-25-00092
| JOHN MISSOS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 11 and 12 August and 5 September 2025 | |
DATE OF JUDGMENT: | 16 October 2025 | |
CASE MAY BE CITED AS: | Missos v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1441 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left lower limb – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Findlay v Transport Accident Commission [2025] VSCA 126; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Leave granted to the plaintiff to seek pain and suffering damages for the left lower limb injury suffered in the incident at work on 8 April 2022.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Mr A Saunders with Ms C A Kusiak | MinterEllison |
HER HONOUR:
Introduction
1Mr John Missos, the plaintiff, is a twenty-eight-year-old labourer. On 8 April 2022, he suffered injury when a nail gun he was holding shot a nail into his left thigh, (“the incident”), in the course of his work for Abbe Industrial Packaging (“the employer”).
2Mr Missos seeks leave to bring a common law proceeding for pain and suffering damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). His claim is that he has a “serious injury” of his left lower limb.
3To succeed, Mr Missos must establish that the permanent impairment consequences arising from his compensable left lower limb injury are “serious”. That is, that the impairment consequences can be fairly described as being “more than significant or marked”, and as being “at least very considerable”.
4The Victorian WorkCover Authority (“the VWA”), the defendant, accepted that Mr Missos suffered a compensable injury to his left lower limb in the course of his employment. The VWA contested the proceeding on the basis that Mr Missos was not a reliable witness, claimed impairment consequences were not attributable to the incident, and in any event, did not satisfy the statutory threshold.
5The issues for determination are:
(a) What are the permanent impairment consequences of Mr Missos’ compensable left lower limb injury?
(b) Are the permanent impairment consequences “serious”?
6The relevant legal principles are well known and were not in dispute.
7For the reasons that follow, I am satisfied that the permanent impairment consequences of Mr Missos’ left lower limb injury satisfy the statutory threshold. He is therefore granted leave to issue proceedings claiming pain and suffering damages.
Background
8The following matters, I believe, are uncontroversial. As far as any were contested, these represent my findings save where otherwise indicated.
9Mr Missos was diagnosed with an Auditory Processing Disorder (APD) as a teenager. He achieved the Victorian Certificate of Applied Learning (VCAL) in Year 12.
10After leaving school, Mr Missos worked as an apprentice cabinetmaker for two different employers over a two-year period. He then worked as a truck driver for about six months.
11Mr Missos began working for the employer as a labourer in April 2021, initially through a labour-hire company. He became a direct employee in March 2022.
12In the incident on 8 April 2022, Mr Missos was assembling a pallet when the nail gun he was holding discharged a nail into his left thigh.
13Mr Missos was taken by ambulance to Mulgrave Private Hospital. Imaging revealed that the nail had entered anteriorly and passed through his distal femur. He underwent two surgeries. In the first, on 8 April 2022, the nail was partially removed and he underwent a neurolysis of the sciatic nerve. In the second, on 11 April 2022, Mr Missos underwent a debridement and a definitive closure of his wounds.
14Mr Missos was discharged from hospital on about 14 April 2022.
15He underwent regular physiotherapy treatment until December 2022.
16Mr Missos was unable to work for about four weeks following the incident. On 11 May 2022, he returned to work performing modified duties during pre-injury hours.[1]
[1]Plaintiff’s Further Amended Court Book (“PCB”) 87
17Mr Missos ceased working for the employer on 31 August 2022. The circumstances in which he left that employment were somewhat opaque.
18On 11 October 2022, Mr Missos began working for Waterline Tanks as a labourer, building steel tanks. He continued in that employment until November 2024.[2]
[2] Transcript (“T”) 55
19Since leaving Waterline Tanks, Mr Missos has worked in four different casual jobs for short periods. He is not currently working.
20For some years prior to the incident, Mr Missos used cannabis recreationally, fortnightly or monthly. Since late 2024, Mr Missos has been prescribed cannabis for his pain. He undertakes a home exercise program given to him by his physiotherapist, and is planning to resume physiotherapy treatment.
21He lives with his former partner and young daughter in regional Victoria.
What are the permanent impairment consequences of Mr Missos’ compensable left lower limb injury?
22Mr Missos tendered two affidavits sworn by him on 22 August 2024 and 11 August 2025, and an affidavit from his former partner, Maddison Russell, sworn on 11 August 2025.
23Mr Missos deposed that he experiences the following impairment consequences:
(a) Regular pain in his left thigh and knee, worse in cold weather;
(b) Sleep disturbance;
(c) A limp, and diminished ability to walk long distances;
(d) Running causes increased pain in his left leg;
(e) Squatting is uncomfortable and painful;
(f) Difficulty kneeling on his left knee;
(g) He struggles with domestic activities which require kneeling or squatting;
(h) Difficulty riding his longboard and mountain bike, playing tennis and squash, and he struggles to kick a football.
24Mr Missos was cross-examined as to:
(a) his use of alcohol in the years prior to the incident. He denied that he consumed alcohol to excess prior to the incident. Mr Missos maintained that his consumption of alcohol increased following the incident. In late 2022, Mr Missos was ordered to undergo alcohol and other drug counselling, and to attend a men’s behaviour change program;
(b) his use of cannabis and the circumstances in which he came to be prescribed medicinal cannabis. Mr Missos initially said that prior to June 2024, his alcohol and other drug counsellor suggested he obtain a medicinal cannabis prescription. He subsequently accepted that he was confused about dates, and had heard about medicinal cannabis through his workmates. It was put to Mr Missos that he thought complaining of back and knee pain was an easy way to get his hands on marijuana. Mr Missos denied that was the case. He said that he had been taking a lot of Panadol and Nurofen for his left leg pain and was looking for a “more natural approach”[3] to pain relief;
[3]T29
(c) reference in the clinical records to chronic lower back pain. Mr Missos said he suffered a back injury as a child, and since then had to take care how he lifted things, and experienced a niggle or strain from time to time;
(d) the physiotherapy treatment he had in the months following the incident. Mr Missos agreed that his main problem at that time was thigh pain, but he also experienced pain in his left knee. He agreed that he was prescribed exercises, including squats and lunges. Mr Missos also agreed that he got strength back in his leg, and stability in his left knee through the physiotherapy treatment;
(e) his work since the incident. Mr Missos said he did not resume his pre-injury duties for the employer following his injury. He resigned in circumstances where he was under investigation, and he did not feel the conditions would get easier for him. Mr Missos agreed that he obtained a clearance from his physiotherapist to undertake the work duties at Waterline Tanks. He was cleared for full hours and full duties. Mr Missos said that his job at Waterline Tanks was modified for him. He said that he did an hour of overtime each day. He performed riveting and sealing. Mr Missos said he left that job in circumstances where a number of other employees had left, and he felt under pressure. Mr Missos worked for BNE Foods as a forklift driver and picker/packer for two to three weeks in about January 2025. He found the cold environment exacerbated his left lower limb pain. He ceased that work as his employer was concerned as to his progress. Mr Missos then worked as a labourer for Cold Form Steel, a company that manufactures truck bodies. He remained in that role for about four weeks. Mr Missos left that employment to take up a role installing ceiling tiles as part of office fit-outs. Mr Missos did that work for several weeks. Finally, Mr Missos handed out flyers and brochures during the election period in May 2025. He is hoping to resume work installing ceiling tiles, which is work he believes he is capable of performing;
(f) treatment for his left leg since ceasing physiotherapy in late 2022. Mr Missos agreed that he did not attend his GP regarding knee pain in late 2022, or during 2023. He did not ask to be referred back to Mr Byrne. He said that in mid-2024 he made enquiries with the insurer about resuming physiotherapy. He has pursued that request, and is awaiting a resumption;
(g) what he told Dr Slesenger when examined on 12 July 2025. Mr Missos denied telling Dr Slesenger that his left leg symptoms settled in late 2022, early 2023. Mr Missos said:[4]
[4]T53
“I didn’t advise that, no. He asked me, ‘Do you think that your leg has settled’ and I said, ‘Yes’, and then I corrected myself and said, ‘My pains have been quite constant, they haven’t settled. I just haven’t been doing anything to agitate them or to feel anything.’”
Mr Missos denied telling Dr Slesenger that his left leg pains recurred in late 2024. He said:[5]
“So they have been more prominent, it’s not that they have recurred. They have always been there but yeah, they have been a lot worse this year.
…
They have gotten worse this year.
…
Last year, they were like pretty consistent. They were manageable, they weren’t getting worse.”
[5]T54
Counsel for the VWA played an approximately 17-minute recording made by Dr Slesenger of part of the history-taking at his examination of Mr Missos on 12 July 2025. In the recording, Dr Slesenger is heard to rehearse what he understood Mr Missos to have earlier said. Mr Missos corrected a number of aspects of the history. At one point, Dr Slesenger was heard to say that he understood from Mr Missos that his left leg symptoms eventually resolved. Mr Missos did not correct him. Later, Dr Slesenger was heard to say that Mr Missos’ symptoms recurred in late 2024. Mr Missos did not correct him. It was put to Mr Missos that he had ample opportunity to correct anything that required correction. Mr Missos agreed and said that he did not pick up anything else that needed correcting. He referred to the limitations caused by his APD.
25Ms Russell’s affidavit was supportive of Mr Missos’ claimed impairments. She deposed that Mr Missos was very active physically prior to his injury. He regularly went skating, bushwalking and running. He used to ride his longboard multiple times a day, and would run a couple of times a week. Since his injury, Ms Russell has observed Mr Missos struggling to walk uphill. He complains of pain in his knee and leg. He struggles to sit for long periods or kneel. He sometimes uses a pillow to elevate his knee in bed. He complained of pain in his leg and knee at the end of the working day for the employer and Waterline Tanks. Ms Russell understood that Waterline Tanks was accommodating of Mr Missos’ limitations. Ms Russell has seen Mr Missos struggle to get up from the floor.
26The VWA did not seek to cross-examine Ms Russell. I accept her evidence.
Medical evidence
Treating material
Mulgrave Private Hospital
27The Emergency Department discharge summary recorded that imaging on 8 April 2022 revealed a nail through the distal end of the femur traversing the length of the shaft. A CT scan suggested an injury to the popliteal vein through the distal sciatic nerve. Mr Missos was admitted for removal of the nail in theatre and wound wash out.
Imaging
28Mr Missos tendered the reports of x-rays of his left femur dated 8 and 11 April 2022, a CT leg angiogram dated 8 April 2022, and MRI scan dated 29 July 2025.
29The initial x-ray noted a nail passing through the distal femur, with 16mm of the nail protruding anteriorly and 54mm protruding posteriorly. No fractures were present.
30The report of the MRI scan of the left knee dated 29 July 2025 concluded:[6]
“1.Metalware artefact involving the anterior aspect of the distal third femoral diaphysis. This makes assessment of this region difficult but there is no underlying cause for symptoms identified in this region.
2. Mild bone oedema involving the anteromedial tibial plateau. This is of uncertain aetiology. This may be from a direct contusion-type injury. No associated chondral ulceration to suggest that this is secondary to chondral loss.
3. No knee joint effusion.”
[6]PCB 64
Mr Patrick Byrne, orthopaedic surgeon
31A letter from Mr Byrne to a physiotherapist dated 26 April 2022 was tendered.
32Mr Byrne noted that Mr Missos had a penetrating nail gun injury to his left femur, which “just brushed his sciatic nerve”.[7] Mr Byrne said:
“… At the moment his main issue is wasting and weakness of his left quadriceps and hamstrings. He can now fully weight bear a[s] tolerated and wean off the crutches when safe.”
[7]PCB 27
Gippsland Physiotherapy
33The records of Gippsland Physiotherapy for the period 6 May 2022 to 21 December 2022 inclusive, were tendered. Mr Missos tendered an initial report from IPAR dated 12 August 2022, which included a note of a physiotherapy case conference on 19 August 2022. The VWA tendered a questionnaire completed by the treating physiotherapist, Nicole Velez, dated 17 March 2023.
34By August 2022, Mr Missos was complaining of lessening left knee pain, and increasing left knee stability. The physiotherapist’s diagnosis continued to be of hamstring and quadriceps tightness.
35At the physiotherapy case conference on 19 August 2022, Ms Velez reportedly noted that Mr Missos was recovering well. There had been a significant increase in his left quadricep strength and muscle bulk. There was still some slight pain in the base of the patella and pain in the popliteal fossa when performing bending and trunk flexion, which Ms Velez attributed to hamstring tendinopathy.
36When last seen on 21 December 2022, the physiotherapist noted good left knee stability, but single leg squats were “slightly unstable due to balance”.[8] Mr Missos was cleared to lift 16 kilograms from floor to chest, and was provided with a certificate of capacity clearing him for full duties.
[8]PCB 38
37In the questionnaire dated 17 March 2023, Ms Velez noted Mr Missos had been discharged to full hours and full duties.
High Street Medical Centre
38Extracts of clinical records were tendered from the High Street Medical Centre for consultations with Thomas Mathew, nurse practitioner, on 10 September 2024, 29 October 2024, 19 November 2024 and 12 May 2025. A letter from Mr Mathew dated 13 May 2025 was also tendered.
39The first consultation with Mr Mathew on 10 September 2024 was described as an initial medicinal cannabis consultation. Mr Mathew noted that Mr Missos used cannabis recreationally in the past by way of “self medicating to manage pain”.[9] He complained of ongoing pain in his left leg due to damaged knee joints. Mr Missos was noted to be seeking medicinal cannabis “to manage symptoms [of] chronic pain, relax without alcohol”.[10] On 29 October 2024, a prescription was provided for CBD oil. On 19 November 2024, Mr Missos reported good improvement, reduced pain and better relaxation.[11] Mr Missos was not prescribed CBD oral liquid by that clinic after 20 November 2024. On 12 May 2025, Mr Missos advised that he was obtaining “cheaper products” with another company, and requested a discharge letter.[12]
[9]PCB 40
[10]PCB 40
[11]PCB 42
[12]PCB 43
Civic Park Consulting Suites
40Extracts of the clinical records from Civic Park Consulting Suites were tendered covering the period 24 July 2022 to 30 July 2025. Various entries were raised with Mr Missos during cross-examination.
Dr Asanka Gunawardana, general practitioner
41A letter was tendered from Dr Gunawardana dated 20 May 2025, referring Mr Missos for physiotherapy for “his L) femur injury at work and follow up”.[13]
Medico-legal reports
[13]PCB 46
Mr Timothy Gale, surgeon
42A report was tendered from Mr Gale dated 16 April 2024. Mr Gale examined Mr Missos that day for the purpose of an impairment assessment.
43Mr Missos reported:[14]
“… ongoing symptoms that he attributes to effects of the subject incident of injury. He is not aware of restricted range of movement of the left hip or the left knee, he suffers occasional discomfort in the anterior aspect of the knee particularly when he tries to kneel, squat or crouch down, and occasionally there is a clicking sensation in the distal thigh region. Occasionally there is a tight feeling in the lower thigh anteriorly and posteriorly.
…
… The worker doesn’t need to take pain-relieving medications.”
[14] Defendant’s Amended Court Book (“DCB”) 22
44On examination, Dr Gale relevantly found:[15]
“… The worker moved briskly and freely around the consulting suite without any postural or gait abnormality.
…
There was a full range of pain-free movement of the left knee with full extension and flexion such that the heel touched the posterior aspect of his thigh. The collateral and cruciate ligaments were clinically intact, there was no joint effusion, the patella apprehension test was negative and there was no clinical abnormality of the patellofemoral articulation. There was no tenderness on palpation in the knee region.
The quadriceps and hamstring muscle groups were strong with equal strength to the right leg.
There was no obvious muscle wasting in the thigh.”
[15]DCB 22-23
45Dr Gale opined that it was possible there were some minor metal fragments still persisting in the lower left thigh that would be unlikely to be causing any symptoms. There were no abnormal clinical findings to explain Mr Missos’ indefinite symptoms relating to the left knee, nor to link them to the physical effects of the injury sustained in the incident. However, he further stated that the clinical presentation is ”possibly consistent with sequelae from the workplace incident of injury”.[16] Dr Gale said that Mr Missos would not suffer injury or harm by engaging in appropriate occupational and daily living activities.
[16]PCB 24
Medical Panel Opinion and Reasons
46A Medical Panel Opinion and Reasons dated 14 August 2024 were tendered. The Panel comprised Dr Helen Rhode, GP and Dr Craig Mills, orthopaedic surgeon. The Panel examined Mr Missos on 31 July 2024 in relation to his claim for an impairment benefit.
47Mr Missos reportedly told the Panel as follows:[17]
“… [H]is sitting tolerance is okay. When standing his thigh aches in cold weather but he can stand for 2 hours in warmer weather. When he walks, he gets a sharp pain in his thigh which varies in onset from immediately or up to 2 hours after he starts walking. He said he has pain daily which he rates from mild to moderately severe. He can perform a squat but said if he kneels he will get a bruise over his left knee.
…
The worker performs exercises at home for 30 minutes 3 to 4 times a week.
The worker said he takes Panadol twice a week and is considering trying medicinal cannabis. He takes no other medication.
There are no plans for further treatment. He said his left thigh is stable.
…
The worker said his left leg has lost strength and affects his balance … [he] rests his leg on a ledge to wash it while showering. He can cook, clean the house, do grocery shopping and drive. He rests his leg on a pillow at night when sleeping.
The worker said he was active before the injury and involved in cross country racing, football, tennis and squash but has now stopped. He still does mountain bike riding and long boarding but finds it difficult.”
[17] DCB 31
48On examination, the Panel noted no antalgia. Mr Missos could semi-squat. He could single leg stand on both sides and the Trendelenburg sign was negative. Measurement of thigh circumference was equal on both sides. The right calf measurement was slightly greater than the left. There was some restriction of flexion of the left knee, and straight leg raising was restricted to 60 degrees on the left due to hamstring tightness. There was no tenderness or crepitus of the left patella and no swelling. The knee was stable and flexion and extension power was normal. Neurological examination of the lower limbs was normal.
49The Panel concluded that Mr Missos was suffering from residual symptoms and dysfunction of the left thigh. The Panel agreed with Mr Gale, that there was a one per cent impairment for scarring only.
Mr Thomas Kossman, orthopaedic surgeon
50Four reports were tendered from Mr Kossman, dated 8 May 2025, 4 August 2025, 6 August 2025 and 8 August 2025. Mr Kossman examined Mr Missos on 8 May 2025.
51In his first report, dated 8 May 2025, Mr Kossman noted Mr Missos’ current complaints as follows:[18]
“Mr Missos told me that the injuries suffered in the above-described work-related accident have had a profound impact on his social, domestic and recreational activities. Mr Missos complained that he has pain in his left knee, and he uses CBD oil. He complained about tightness around the wounds on his left thigh. Intermittently he awakes during the night from his pain issues. He cannot walk long distances. He has difficulty putting on his socks and shoes and taking care of his toenails.”
[18]PCB 49
52On examination, Mr Kossman noted identical range of movement findings in the left and right knee, and stable ligaments. Muscle measurements of the lower extremities were equal. He noted that Mr Missos suffered from pain over the medial joint line of the left knee.
53Mr Kossman’s diagnosis was:[19]
“Penetrating injuries to the left distal thigh and femur by a nail from a nail gun.”
[19] PCB 53
54Mr Kossman opined that it was unclear why Mr Missos continued to suffer from pain in his left knee. He recommended an MRI scan to investigate the cause of the reported pain. Based on Mr Missos’ report of pain, Mr Kossman opined that he had a restricted work capacity. That is, he should avoid walking long distances, walking on uneven ground, walking upstairs or downstairs, walking on inclines and declines, climbing up and down ladders, kneeling or squatting and carrying items weighing more than 2 to 5 kilograms.
55Mr Kossman was subsequently provided with the report of an MRI scan of Mr Missos’ left knee performed on 29 July 2025. He noted, in his second report dated 4 August 2025:[20]
“… The radiologist documented two linear metallic fragments anterior to the distal third of the femoral diaphysis just below the patient’s pain marker. The radiologist documented that the metalware artefact obscured the assessment of this region. Furthermore, the radiologist documented mild bone oedema involving the anteromedial tibial plateau.”
[20] PCB 56
56Mr Kossman said that he needed to see the relevant imaging in order to provide a further opinion, but offered the following view:[21]
“Regarding the cause of Mr Missos[’] pain issues in his left knee I want to state that to my knowledge, Mr Missos did not suffer from any pain issues in his left knee prior to the work related accident on 8 April 2022. Therefore, on the balance of probabilities, I believe that the work related accident is the cause for Mr Missos’ left knee pain.”
[21]PCB 57
57Mr Kossman was subsequently provided with the images of the MRI scan on 29 July 2025. In his third report, dated 6 August 2025, he said that the two foreign bodies identified in the x-ray of Mr Missos’ femur on 10 April 2022, could be the same as the metal objects described in the report of the MRI scan of 29 July 2025. Having viewed the images of that MRI scan, Mr Kossman said he could not identify the described metallic fragments. He said that he was unable to “pinpoint the reason for Mr Missos[’] ongoing pain issues”.[22] Mr Kossman recommended a repeat MRI scan in six months, “to see if [t]here had been any changes”.[23]
[22]PCB 59
[23]PCB 59
58Mr Kossman was provided with the report of Dr Slesenger, occupational physician, dated 20 July 2025, and asked whether it caused him to alter his opinions. In his final report, dated 8 August 2025, he said Dr Slesenger’s report did not cause him to alter his opinions.
Dr Joseph Slesenger, occupational physician
59A report was tendered from Dr Slesenger dated 20 July 2025. The VWA also tendered an audio recording of part of the examination of Mr Missos by Dr Slesenger on 12 July 2025.
60Dr Slesenger reported that Mr Missos told him that his symptoms improved with treatment, his mobility improved, his pain began to settle in late 2022/early 2023 and his symptoms eventually resolved. He reported that his symptoms recurred in late 2024, and:[24]
“… [H]e advised that he now has severe pain in the left thigh around the knee, and the symptoms have persisted. He advised that the pain is band-like around the lower thigh. There is associated stiffness in the left knee together with restricted range of movements.
He has difficulty squatting and kneeling, and difficulty walking over even ground. He can walk and stand for between 20 and 60 minutes, although this is variable. The knee occasionally gives way and occasionally locks. He is unable to kneel. He advised that he has difficulty weight-bearing on the left side, difficulty climbing up and down stairs, difficulty walking over even ground and difficulty squatting and kneeling.”
[24] DCB 6
61On examination, Mr Missos walked with a normal gait, and was able to perform a one-third squat. On palpation of the left knee, there was tenderness over the medial joint line, the medial collateral ligament and the medial hamstring. There was no effusion and no increased temperature in the overlying skin. There was a well-preserved range of movement and no crepitus noted. The joint was stable. Thigh circumference was marginally greater on the left, and power, tone and reflexes were normal bilaterally.
62Dr Slesenger opined that the incident-related impairment had resolved, and Mr Missos’ current impairment was more likely to have more proximal causes including his recent employment. Dr Slesenger further noted that he saw evidence of “heavy and repetitive manual tasks currently being performed”.[25] In further explanation of his opinion, Dr Slesenger noted that physiotherapy treatment ceased in late 2022, Mr Missos was cleared for unrestricted duties, was able to maintain full-time employment at a water tank company for two years, there was a gap in treatment and it was unlikely that he was suffering with continuous symptoms since the injury.
[25]DCB 17
Findings
63There was no dispute that Mr Missos suffered injury to his left leg in the incident in April 2022. The nail penetrated the distal femur and brushed the sciatic nerve.
64Following the incident, he experienced symptoms in his left thigh and left knee. An issue in this application was the course of Mr Missos’ symptoms in 2023 and 2024 and whether the symptoms Mr Missos currently experiences in his left knee are materially contributed to by the compensable injury.
65I bear in mind the following observations of the Court of Appeal in Findlay v Transport Accident Commission:[26]
“… in a case in which medical opinion is expressed in terms that there is a possible causal connection between an accident and a medical condition, the court may, in the circumstances of the case, be satisfied, on the balance of probabilities, that such a causal relationship has been established.”
[26] [2025] VSCA 126
66Leading Counsel for the VWA submitted that currently Mr Missos complains primarily of symptoms in his left knee. The left knee symptoms which were causally related to the compensable injury resolved by late 2022. Leading Counsel for the VWA then submitted that Mr Missos experienced a –
“… recurrence of symptoms in a different, albeit nearby body part. … .
…
… the sequence of events raises serious doubts about the cause of the plaintiff’s current knee pain, and Your Honour should find that it is not related to the admitted injury.”[27]
[27]T113-T114
67I accept that Dr Slesenger understood Mr Missos to say that his symptoms resolved by late 2022. I find this was likely a miscommunication between Dr Slesenger and Mr Missos. No other doctor was given that history. It does not accord with Mr Missos’ evidence, or the evidence of Ms Russell. I find that Mr Missos failed to fully pick up what Dr Slesenger said when he rehearsed what he had understood of Mr Missos’ history. I do so because the audio recording reveals the conversation had a rushed quality. Further, Mr Missos suffers from APD. I accept that disorder impacts upon his ability to comprehend and process what is said. This appeared to be a factor during his oral evidence. On more than one occasion, Dr Slesenger referred to the right rather than left limb. Mr Missos did not correct that error.
68Leading Counsel for the VWA submitted that Mr Missos was an unreliable witness. It was submitted he gave inconsistent and at times contradictory evidence.
69I find that some aspects of Mr Missos’ evidence were confusing, and at times inconsistent. However, my impression was that Mr Missos misunderstood some questions he was asked. He appeared to me to be doing his best to answer questions candidly. He struck me as an earnest but unsophisticated witness. I find that I am generally able to rely upon his evidence as to his impairment consequences from time to time.
70I find that by late 2022, Mr Missos’ left thigh and left knee symptoms had improved. I do not accept they resolved. In late 2022, Mr Missos was cleared to perform work as a labourer at Waterline Tanks by his physiotherapist. I accept Mr Missos’ evidence that his boss at Waterline Tanks was aware of his prior injury and accommodated his restrictions. Mr Missos was able to work full time, and an hour of overtime each day.
71During 2023, Mr Missos did not attend his GP or any specialist regarding ongoing symptoms in his left thigh and knee.
72In April 2024, Mr Missos reported ongoing symptoms in his left thigh and knee to Mr Gale. In July 2024, Mr Missos reported ongoing symptoms in his left thigh and knee to the Medical Panel.
73There is a lack of recent material from the treating practitioners. This is, in part, explained by the lack of treatment. However, there is no report from the practitioner who is currently prescribing medicinal cannabis, and no recent report from Mr Missos’ GP. I note Mr Missos’ evidence that he has not been physically examined by the practitioner who prescribes the medicinal cannabis.
74Mr Kossman’s objective findings upon examination of Mr Missos’ lower limbs, were of an essentially normal range of movement, no measurable muscle wasting, normal power and intact ACLs. He opined there was no clear reason for Mr Missos’ complaints of pain. Mr Kossman was not able to pinpoint the cause of Mr Missos’ left thigh and left knee pain.
75On a consideration of the whole of the evidence, I am satisfied, for the purpose of this gateway proceeding, that the causal relationship between the compensable injury and the current symptoms in Mr Missos’ left thigh and knee has been established. I do so because I accept Mr Missos’ account of his symptoms over time. He has had symptoms in his left thigh and knee since the incident, albeit that the severity has varied.
76I do not accept Dr Slesenger’s opinion that the current symptoms Mr Missos experiences in his left knee are unrelated to the compensable injury. This is because that opinion is based in part on a complete resolution of left knee symptoms in late 2022, and a new onset in 2024/25.
77I accept the submission made by Senior Counsel for Mr Missos, that, despite having a different view of the causal link, Dr Slesenger did not suggest that the impairment consequences of which Mr Missos complained were inconsistent with his presentation and examination.
78There was no issue between the parties regarding permanence in the requisite sense.
Pain
79I accept that Mr Missos experiences pain in his left thigh and around the knee. It is “band like” around the lower thigh.[28] I accept that there is associated stiffness in the left knee.
[28] T126
80I find that the pain is not constant. I accept that the pain occurs when Mr Missos is performing tasks such as bending down, kneeling or walking long distances.
81I accept that Mr Missos is prescribed, and takes, medicinal cannabis for his pain and to assist with sleep. Doing the best I can, it appears that the prescriptions began in about September 2024 and are continuing. I do not accept the submission made by leading counsel for the VWA that Mr Missos “simply used the injury and the back injury as a vehicle for accessing medicinal cannabis”.[29]
[29]T119
82Mr Missos said he was not able to consult his GP regarding symptoms in his left leg whilst he was employed as he was too busy. He said that bulk-billed appointments at his local GP clinic were only available during work hours on weekdays. I am not satisfied that is a sufficient explanation for the infrequent attendances. I find it is more likely that Mr Missos did not feel the need to attend his GP.
83Mr Missos has not had any hands-on treatment since physiotherapy ceased in late 2022. I accept that he intends to resume physiotherapy.
Work
84Mr Missos remains capable of performing full-time work as a labourer.
85I do not accept that he left his role at Waterline Tanks due to his left leg symptoms. On the evidence, the more likely explanation is that Mr Missos wanted to play more of a role in the care of his young daughter, and did not want to have the responsibility of being one of the more experienced workers in the factory.
86To his credit, Mr Missos has tried various other roles since leaving Waterline Tanks. He has been willing to travel to work, often some distance. I accept that the cold work environment at BNE Foods led to Mr Missos experiencing an increase in symptoms in his left leg. I am not persuaded that Mr Missos was unable to perform the role at Cold Form Steel by reason of symptoms in his left leg. The election role was inevitably short term. He intends to resume the office fit-out work.
87I accept that Mr Missos’ left leg symptoms restrict his work capacity to a degree. That is, he has some difficulty squatting, crouching and kneeling.
88I find that these limitations upon Mr Missos’ work capacity are likely to preclude him from engaging in the full range of manual work for which he was fit prior to his injury. I take into account that this is of some significance for such a young person.[30]
[30] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Functional tolerances
89I accept that Mr Missos experiences difficulty when he kneels or squats and in walking for prolonged periods or on uneven ground. I accept Mr Missos’ evidence that his knee occasionally gives way and locks. I accept Mr Missos has some difficulty climbing up and down stairs. He has difficulty weight bearing on his left side.
90I accept that Mr Missos has some difficulty with heavier domestic activities.
Sleep
91Mr Missos suffers from disrupted sleep because of pain in his left leg.
Recreational activities
92Mr Missos has a reduced capacity to ride his longboard by reason of his left leg symptoms. I accept the evidence of Ms Russell and Mr Missos that this was a passion of his that has been significantly diminished by reason of his left leg injury.
93I accept that Mr Missos struggles to ride a mountain bike by reason of left leg discomfort. The frequency with which he engaged in this activity prior to the incident was unclear, so it is difficult to assess the quality of the loss.
94In general terms, I accept that Mr Missos was very active prior to his injury, and has become less active recreationally by reason of his injury.
Are the permanent impairment consequences “serious”?
95I am required to consider the range of impairments and the consequences of such impairments and not just those that come before the Court.[31]
[31] TTB SMS Pty Ltd v Reading [2020] VSCA 203
96What is lost must be considered in the context of what is retained.
97Mr Missos suffered the compensable injury when he was twenty-five. He is only twenty-eight now. He is likely to experience the impairment consequences of his left leg injury for many decades.
98In undertaking the value judgement required of me, and in assessing the consequences of the injury collectively, I am satisfied that the impairment consequences that Mr Missos experiences meet the statutory threshold. The factors that tip the balance in favour of Mr Missos are his youth, the impact upon the range of labouring work he can undertake, and the reduction in his ability to engage in a variety of sports. I find that the permanent impairment consequences of his left leg injury are “more than significant or marked” and “at least very considerable” to him when compared with the range of possible impairments, including those which do not come before the Court.
Conclusion
99Mr Missos is granted leave to commence a common law proceeding for pain and suffering damages arising from the incident on 8 April 2022.
100I will hear the parties on the issue of costs.
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